This
case came on for trial before the Court, jury waived, on
February 2, 2018. Counsel were given additional time to
supply legal memoranda. Each side has now submitted
post-trial memoranda and the case is before the Court for
decision.

FINDINGS
OF FACTS

In
2008, Dr. Anthony Farina was in the process of constructing a
building on Mineral Spring Avenue in North Providence when
disagreements with the contractor resulted in the contractor
ceasing performance. Dr. Farina was an experienced
professional and had some experience with construction
contracts in the past. Dr. Farina contacted Joseph Ricci, a
principal of the Plaintiff-corporation, to coordinate the
completion. Mr. Ricci referred the matter to Mark Mercure, a
vice president, who handled ongoing negotiations with the
client.

While
there was some discussion of having Plaintiff-corporation
(Ricci) serve as a general contractor, Dr. Farina had already
enlisted certain subcontractors, and some work had already
been performed. After negotiations between the parties and to
minimize the charge to the client, Mr. Mercure suggested that
Ricci serve only as the construction manager. He drafted a
contract (Ex. 1) which each of the parties executed. Although
Dr. Farina signed the contract, the contracted party is
listed as Branting, LLC, [1] which the Court infers Dr. Farina
controlled for his construction. The agreement is an American
Institute of Architects form contract for Construction
Management dated July 15, 2008 with various exhibits
attached. The contract was reviewed completely by both
parties and signed on July 15, 2008. Exhibits A, B and C of
the contract were attached to it and initialed.

The
contract is entitled "Standard Form of Agreement Between
Owner and Construction Manager where the Construction Manager
is NOT a Constructor." It clearly delineates that the
Construction Manager is to advise on the method of selecting
subcontractors (§ 2.2.10), prepare a construction
schedule (§ 2.2.11), expedite and coordinate delivery of
materials (§ 2.2.12), work with the architect (§
2.2.16), coordinate bids for subcontractors, (§ 2.2.17),
keep the owner updated (§ 2.3.5), manage the
subcontractors (§ 2.3.7), do financial forecasts (§
2.3.9) and monitor payments to subcontractors (§
2.3.11.1). Unlike a general contractor, the construction
manager does not have control over the construction means or
the work to be performed (§ 2.3.15), nor does he enlist
the individual subcontracts. Unlike a general contractor,
Ricci did not hire the subcontractors or take a percentage of
the project as a markup. The subcontracts are with the owner.
As Dr. Farina already had subcontractors, work in progress
and design professionals, this agreement worked well for each
of them.

In
Exhibit A, the total payment due Ricci is listed, as are the
specific dates of payment. Only the final payment is
dependent on a proviso that it will be paid on "November
15, 2008 or upon such extended date as it completes its
services." (Ex. A at 3.) Exhibit B to the contract is an
estimated budget, clearly indicating the general conditions
and fixed fees. Exhibit C to the contract is a
"Description of Project."

In
December 2008, Ricci had completed its work under the
contract and Dr. Farina took occupancy of most of the
building, to the extent it was built out. After adding the
total amount of the contract, plus the change orders due to
Ricci, less the payments made, Branting, LLC continued to owe
$252, 707 in December 2008. Ricci continued to press for
prompt payment, to no avail. Dr. Farina did not question the
quality of Ricci's work; he only indicated he did not
have the funds available to pay. By late spring, the parties
were discussing a promissory note. The first draft of the
promissory note was rejected by Dr. Farina, and the note was
rewritten by Ricci. The second version was produced, and Dr.
Farina modified it in the presence of Mr. Mecure and Joseph
Ricci and then signed it freely and voluntarily. Dr. Farina
removed an interest rate and extended a due date. The revised
note was signed and given to Ricci on June 10, 2009 and is
trial Exhibit 3.

Although
Dr. Farina was continuously apprised of the status of the
construction during the construction phase, once the work of
Ricci was done, efforts were made to obtain timely and
additional payments from Dr. Farina, to no avail. Pursuant to
the note, payments of $252, 707.08 were due on January 1,
2010. By January 1, 2010, payments of only $187, 000 had been
made. The following payments were made by Dr. Farina
thereafter:

March 2, 2010 - $10, 000.00

May 17, 2010 - $20, 000.00

July 21, 2010 - $15, ...

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